Teresa McCarthy v The Highland Council - Unreported,
Inverness Sheriff Court 28 August 2009
The pursuer, Teresa McCarthy, was a secondary teacher at
Drummond School, Inverness. The school was managed by the defenders
and catered specifically for children with special educational
needs. The pursuer was instrumental in setting up and organising a
specialist class for older pupils with autism. It was accepted that
many of the pupils were difficult to manage. One of the pupils, M,
required a dedicated learning support auxiliary. However, in June
2001 the auxiliary worked with the whole class rather than with M
alone. Although M had a history of anxiety and had hit pupils and
staff members previously no written protocol for managing his
behaviour was in place prior to 7 June 2001. On that date the
auxiliary was with the specialist class when M became agitated and
repeatedly punched her. The pursuer entered the room. In trying to
protect the auxiliary she was also repeatedly punched. On 30 August
and 6 and 19 September 2001 similar incidents occurred and M was
eventually suspended for three days.
The sheriff had to decide whether the defenders had breached
their ongoing duty to take reasonable care for the pursuer's safety
and to devise, maintain and enforce a safe system of work. He was
able to hold that there was a foreseeable risk of injury to the
pursuer: many of the children at Drummond School were
unpredictable, and the risk of injury was ever present. However, he
found the issue of whether negligence had been established much
more difficult to decide. It was conceded by the pursuer that she
had no pleadings comparing the approach taken by Drummond School to
equivalent establishments, and so was unable to suggest that no
comparable school would have acted in the same way.
Instead, she had to satisfy a higher test namely that the school
had failed to take steps so clearly required that the failure
constituted an 'obvious folly' following the wording and test
outlined by Lord President Dunedin in Morton v William Dickson
Limited [1909] SC807. This meant that she had to demonstrate
that the behaviour of the school was inexcusable. Prior to 7 June
2001 the sheriff was content that there was no breach. The school's
witnesses had clearly outlined their awareness of risk, the
appropriate staffing levels, emphasis on prevention and a variety
of means whereby needs and behaviour were monitored and reviewed.
However, following the incident on 7 June there was a failure
properly to assess staffing levels in relation to the specific
class containing M and a failure to reassess the risk of violence
and its management. Precautions such as provision of walkie-talkies
or a pager, and either a male support worker or additional learning
support staff would have been practical. In the sheriff's view the
school had wrongly concentrated on the prevention of further
incidents to the exclusion of staff safety. Their omissions
constituted an 'obvious folly' and the test was satisfied.
Accordingly, the duty to assess and manage risks to the pursuer
was breached. Similarly, the sheriff found that the defenders'
duties to ensure that violent incidents were reported and, that
means of avoidance were identified were also breached.
It followed, therefore, that the pursuer was successful but only
in relation to the second, third and fourth attacks. In concluding
that the pursuer had succeeded in her case on liability the sheriff
relied on the ongoing nature of the duties owed, the changing
emphasis of those duties and the necessary flexibility to respond
to situations as they arose such as that on 7 June 2001.
The defenders also argued that they had a causation defence. The
pursuer had a history of psychological illness. Could it be said
that these specific incidents had any effect beyond that which
might have occurred in the absence of the assaults? On balance, the
sheriff found that the attacks had materially contributed to an
exacerbation of a pre-existing psychiatric condition. Solatium
(general damages) and loss of earnings were claimed and the
eventual award totalled £71,158.
Cases such as this demonstrate that even the most conscientious
employer, believing that its systems and regimes are water tight,
can still fall foul of general common law duties to take care for
the safety of their staff and provide a safe working environment
where they have failed to adequately respond to a material change
in circumstances.
Contributed by Andrew Constable